Wednesday, July 19, 2006

This will conclude the series on the NLRC, but it doesn't mean I will stop talking about that agency here or elsewhere.

The NLRC has been a theoretical mistake and a practical disappointment. While founded on an ideology that romanticized the worker, the agency bred monsters that ultimately defeated the workers interests. How many industries has it destroyed in the guise of protecting worker's rights? Needless to say, if there are no industries, there are no workers. How many workers have been sold by their unions to their employers? These anomalies have been so common that they are now regarded as the norm, instead of the exception. Indeed, there is no end to these problems unless the NLRC is abolished.

After the abolition of the NLRC is effected, my proposal is the transfer of its judicial functions to the Regional Trial Court. These courts should then adopt rules that will remove all unfair presumptions in favor of labor, and maintain the usual presumptions in a civil dispute. In this manner, the fairness of the rules of procedure will not be questioned and no class or specific interest group will have undue advantage over others.

Further, the transfer of the NLRC functions to the regular courts will effectively break the hold of syndicates and power brokers in labor disputes. Of course, this is not to say that the regular courts are free from the hold of other syndicates and power brokers. Yet, the Supreme Court is conducting its own efforts against graft and corruption in the judiciary, and so this matter of integrity of the court system is already being addressed.

Another matter which I propose is the creation of the office of labor advocates. I imagine it as an institution which will advocate labor's cause pro bono before the courts in the same manner as the the Public Attorney's Office represent the cause of the poor before the courts. But the system should be that the labor advocates should be initially convinced that the laborer has a prima facie case against management in order to ensure that the office will not abused. Of course, the laborers can hire their own paid counsels; the labor advocates office will handle the cases of those who cannot afford to pay for their own lawyers.

This is a blog. Although I have thought hard about this series for weeks, I know there are matters which I missed. But I've posted this proposal here, so that researchers of people who are in a position to change things in this country will have something with which to start. The NLRC is and has always been a bad idea. Its immediate abolition is imperative.

Tuesday, July 04, 2006

Before I proceed, let me just clarify the points I made in earlier posts. I am only against the NLRC. I am not anti-labor law in general. The NLRC is a quasi-judicial body; it should be neutral. It should not have a bias.

As stated in the earlier posts, in view of the uselessness of the appeal process, the labor arbiter's decision is the key to any labor dispute. Whoever wins in the level of the labor arbiter has won ninety percent of the battle. It is for this reason that labor arbiters have been the subject of corruption.

When I was a freshman law student of the Ateneo, one of my professors (who is now the dean of another law school) once said some labor arbiters who agree to rule in favor of a litigant for a consideration would even ask the lawyer to draft the winning decision for his client. I was shocked when I heard this from a teacher. But this observation of his would be validated many times by fellow lawyers who have experienced dealing with labor arbiters. The consideration is not always in the form of money. It could be political accommodation, a quid pro quo among fraternity brothers, or family members. These brings us to the point that the NLRC is a territory of certain groups or tribes. If a litigant is not a part of of any these tribes or is unable to find someone who is one among these tribes, the likelihood of obtaining a favorable judgment is poor regardless of the merits of the case. These tribes are as follows:

1. The Fraternities

Ten years ago when I was still looking for employment among the big Makati law firms, I was struck by a brochure being peddled by one of the law firms. The brochure bragged that a certain partner of the firm enjoys good relations with the labor arbiters of the NLRC. According to the brochure, this was due to the fact that the partner was a member of a certain law fraternity many of whose members were incumbent labor artbiters. Eventually, as I got employed and began working for a Makati law firm, I learned that the brochure was not lying. The partner had an impeccable record win-loss record with the NLRC, and the network was so reliable that all he needed to do was call to get his client's way.

2. The Labor Unions

In my early years in the practice, I once had an illegal dismissal case filed against my client by an employee who was being supported by one of the more prominent labor unions in the country. I thought my case had a good chance of winning, as my client had followed the proper procedure for dismissing an employee, so I was against any settlement. To my surprise, however, the labor leader approached me after the first hearing and offered to convince the employee to withdraw the case in exchange for twenty thousand pesos. I found the offer outrageous; and I rejected it immediately. The employee was unaware of the offer, and he thought all along that the labor union was working for his interest.

To my disbelief, we lost the case to the employee. Given the difficulty of the appeal process, I recommended settlement to the client. My client moved on and eventually I have forgotten about that heartbreaking loss until one day, I met the labor leader again under different circumstances. On one occasion, I asked him casually how they managed to win that case years ago. He smiled and told me that it was because the arbiter was in the union's payroll. This is plain hearsay, not enough to build a case on -- i know -- but then again, this is a blog, and the rules of evidence does not apply.

3. The Establishment

By the "Establishment", I mean politicians who are in power. I have seen how powerful handwritten notes on letterhead notepads of high government offices can do wonders for labor disputes. Usually, the notepads are inscribed with innocent suggestions or requests, such as "please assist the bearer" and the like. Yet, recepients read between the lines and know that a granted request could be a ticket to a promotion to a higher office and better pay.

4. The Superstars

By "Superstars", I mean individual lawyers or law firms who have built their practice around key NLRC Commissioners and labor arbiters. Superstars operate after office hours. They wine and dine NLRC Commissioners and labor arbiters to protect cases pending with these officials. Many years back, there was a white paper being passed around by the NLRC employees about a certain lady lawyer who was rumored to be the paramour of a then incumbent NLRC Commissioner. I read some of these white papers, and I found the details about how cases were being fixed by the alliance of the lady lawyer and the NLRC Commissioner very interesting. Nothing would come out of these white papers, because eventually the NLRC Commissioner would be booted out of office for another reason, and the white papers stopped. But there are other Superstars that operate these days like the once very powerful lady lawyer.

There are other groups that thrive in the flawed environment of the NLRC, but the more powerful groups are those mentioned above. This is the reason why the abolition of the NLRC is an imperative for national development. The pro-labor structure of the NLRC has bred these groups who thrive upon its unfairness. Thus, if the NLRC is dismantled the powers of these tribes over labor disputes would be greatly diminished, and true social justice will have a chance.